THE BANNING OF THE 'ROUGH SEX DEFENCE'
What is the 'rough sex defence' and what does its ban mean for womxn and womxn's rights?
By El Barnes / 5 July 2020
TW: Sexual assault, abuse, violence and rxpe
In the past couple of weeks, the UK government has made an important announcement that signifies a huge victory in the fight for women’s equality: the ‘rough sex defence’ will be banned.
The rough sex defence has been used in the UK since 1972 as a way for perpetrators of violent crimes committed during sex to absolve themselves of responsibility. Often, this involves aiming for a charge of manslaughter as opposed to murder.
Whilst the connection between women’s rights and the rough sex defence may not be initially apparent, it becomes so within minutes – even seconds – of researching the history of this controversial tactic that is used in assault and murder cases to claim that the victim only wound up injured or dead as a result of a ‘sex game gone wrong’. Predictably, the victims in these cases are overwhelmingly – near exclusively – women, and the perpetrators equally as overwhelmingly men.
Three recent and notorious instances of the rough sex defence being used in court are the murders of India Chipchase and Natalie Connolly, 2016, and Grace Millane, 2018. Each of these cases has contributed to a swell of public opposition that has helped to highlight the need for legal reform when it comes to the protection of women who are killed or injured at the hands of men they have had sex with. India was 20 years old when she got into a taxi with Edward Tenniswood, an older man, outside a nightclub, under the guise that he would help her get home safely. She was raped, beaten and strangled, and spent over 24 hours dead on her killer’s bed before she was found. Natalie was 26 years old when she was murdered by her partner, John Broadhurst, who carried out a vicious attack that resulted in the young mother amassing around 40 injuries, including a fractured eye socket and chemical burns to her face. She was so severely injured that the amount of blood lost alone was enough to kill her. Grace had either just turned, or was just about to turn, 22, and was travelling in New Zealand when she was murdered by a man she had just been on a Tinder date with – CCTV footage shows her smiling at her killer in a bar shortly before he murdered her in a hotel room.
There are several glaring similarities between these cases. At the heart of them are three young female victims who should have had decades left to look forward to; a barmaid, a mother and a recent graduate each forging their own place in the world and each adored by a circle of family and friends. They were all pitted against three despicable, older and physically more powerful men who had little regard for anything but their own selfish and deep-rooted desires. All three men opted to use the rough sex defence in court, showing as little respect for their victims in death as they did when they were alive. India’s killer claimed that their sex was consensual, and that India herself had placed his hands on her neck. Both he and Natalie’s killer drew attention to the amount of alcohol their victims had consumed shortly before they were killed, in a bid to present them as irresponsible, unrespectable young girls who couldn’t control their desire to drink alcohol and engage in painful sex. Broadhurst also claimed that he only hurt Natalie ‘within the boundaries of her masochistic desires’. As Sarah Ditum quips, ‘dead is as good as drunk when it comes to being able to turn a woman to your own purposes.’ Grace’s killer put forward that she had an interest in BDSM and requested that he choke her.
There are two fundamental issues shared by each of these arguments.
Tenniswood stayed with India’s body for a while before leaving his property – with India still in it – and engaging in a drinking binge that spanned almost an entire day. Broadhurst left Natalie dead at the bottom of the flight of stairs at their shared home and neglected to call 999 until the following day. Grace’s killer, like Tenniswood, stayed with her body, taking pictures, watching porn and casually researching how to dispose of a dead body. The resultant disposal was elaborate and carefully planned. The behaviours enacted by each of the killers after their victims had died explicitly demonstrate the levels of premeditation and disregard for human life that serve as prerequisites for murder.
The second fundamental issue is that even if the arguments of the murderers were true – even if India put Tenniswood’s hands on her neck, even if Natalie had ‘masochistic desires’ that she liked to experiment with, even if Grace asked to be choked during sex – none of them consented to being killed. Sian Norris writes in response to the banning of the rough sex defence that ‘no-one consents to their own death.’ The length of time it takes to cause death by strangulation is subject to a number of variables, but a 2012 study posits that around 4 minutes of jugular compression would result in the body’s inability to resume breathing without medical assistance. This is more than enough time for the killer to realise that what is happening is far more violent and conclusive than the enactment of experimental desires; this is supported by the suggestion that it took Grace 5-10 minutes to die, and that her killer continued to strangle her after she fell unconscious. We cannot render these men as exempt from cognitive function, and therefore exempt from accountability, simply because they were having sex. We cannot render their victims as exempt from victimhood and deserving of injury or even death because they, too, were having sex.
Natalie’s death in particular gave rise to the ‘We Can’t Consent to This’ campaign which acts as a valuable platform for women who have survived violence during sex, and for the stories of women who can no longer speak for themselves, and have instead been immortalised by the words of their killers, motivated by the selfish hope for a lesser charge and a lighter sentence. However, even its founder Fiona Mackenzie misses the mark somewhat when she states that the issue is centred on the normalisation of violence during sex. This further absolves the male perpetrators of responsibility and suggests that these women were not killed by evil men, but rather by a surge of collective sexual liberation that has facilitated increased and easier consumption of porn; more sex in films, TV shows, music videos, advertisements; books about sex; songs about sex; documentaries and podcasts about sex. India, Natalie and Grace weren’t killed by a cultural anomaly that convinced their killers it was okay for them to die. We will never know for certain what kind of sexual behaviour they chose to engage in; what we do know is that this is not what killed them, and they did not choose to die. They were killed by men desperate to exert control and enact their own abhorrent desires irrespective of the consequences.
This is why the rough sex defence is so degrading.
It exists as one in a long succession of displays of comradery between the legal system and male perpetrators, designed to discredit female victims by presenting them as hypersexual and subhuman. Broadhurst’s casual remark to the emergency services that his girlfriend was ‘dead as a doughnut’ and the media’s callous referral to the rough sex defence as the ‘Fifty Shades defence’ demonstrates a blatant disregard for, and even a chilling enjoyment in the abuse of, women’s lives, and a lack of interest in the realities of the female experience of sexual violence. This is further perpetuated by the tabloids’ use of terms such as ‘sex-crazed killer’ – although seemingly condemning of the male perpetrators, the term instead disregards the tedious struggle faced by women like Natalie who suffer extended periods of physical, mental and sexual abuse, and women like India and Grace who fall victim to opportunistic but nevertheless calculating killers. The term ‘sex-crazed’ in itself acts as an excuse, proposing that these men are not inherently bad but rather were driven to madness by a sudden rush of desire. As Sophie Wilkinson writes, ‘rough sex doesn’t kill, domestic violence does.’
The banning of the rough sex defence is, ultimately, a hugely valuable step towards equality for women who are disproportionately victims of sexual violence and death during sex. However, this is only the beginning. The abolishment of the rough sex defence is happening as part of a wider domestic abuse bill, which demonstrates a connection between the defence and domestic abuse. The existence of such a connection is reaffirmed by numerous violent criminals that have used the rough sex defence after enacting a period of abuse. These include Peter Drinkwater, who killed Carole Califano in 1972 and whose subsequent trial was the first in which the defence was used in the UK. Over forty years later, Natalie Connolly’s killer was sentenced to less than 4 years in prison for manslaughter – what hope does the banning of the rough sex defence give to the 68% of female murder victims who are killed by someone they know? Opportunistic murders are viewed as uniquely abhorrent because there were so many chances for the killer to pick another victim. Victims of abuse are afforded a lesser status of victimhood because their deaths will always be surrounded by echoes of ‘why didn’t she just leave?’ Broadhurst was able to present the rough sex defence so convincingly – even prosecutors were certain they would struggle to ensure a conviction – because society unfortunately struggles to believe that a man could put forward those opinions of his partner unless they are based in fact. The simple truth, though, is that there is no hierarchy of depravity when it comes to taking another’s life and then reducing their private life to an excuse for murder. Banning the rough sex defence should be celebrated as an important first. The second should be viewing female victims of violence as equal, regardless of circumstance and without the need to probe senselessly into their private lives to prove that said violence was warranted.
If you are interested in learning more about the rough sex defence and why it has no place in modern society, below are some resources:
The Preppy Murder: Death in Central Park is a docuseries available on Amazon Prime that explores the US’ most notorious instance of the rough sex defence.
The ‘Our Stories’ section of the ‘We Can’t Consent to This’ website platforms the voices of women who have experienced unwanted violence during sex. Their ‘Do These Defences Work?’ page highlights numerous cases of the rough sex defence being used successfully.
Episode 413 of the Standard Issue podcast, available on Spotify, includes a discussion of the increased usage of the rough sex defence.
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